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Mossoff Comments on Congressional Interest in Patent Regulation

New patent cases added to the Supreme Court docket at the same time Congress is considering changes have the potential to reshape patent law, Professor Adam Mossoff says in an article in CQ Roll Call.

"The U.S. Supreme Court has come roaring back into the patent law field in the past several years and is now deciding patent law cases at a rate probably not seen since the 19th century," Mossoff says.

He argues that Congress should not involve itself in areas of patent law that currently are being handled effectively within the judicial system, since overlapping interest by the two branches of government could produce unpredictable consequences, such as possible dismissal of Supreme Court challenges if Congressional action should render them moot.

"There's greater uncertainty and greater risk for litigants to engage with each other in the courts because there is now the ever-present concern that Congress could step in and very quickly push through legislation," Mossoff explains.

"The Supreme Court is stepping aggressively into the debate over the nation’s
patent system, leading some lawmakers and interest group advocates to argue
that Congress should not pass new legislation until the justices have had a
chance to resolve key aspects of existing law.

"The high court on Dec. 6 added its third major patent case of the year to
its docket, agreeing to hear a challenge that could clarify whether certain
computer-assisted inventions, such as algorithms, are too abstract to be
patented. The case 'is the one, frankly, we’ve all been waiting for for years,'
said Julie Samuels, a senior staff attorney and patent law expert at the
Electronic Frontier Foundation, which is urging the court to rule that such
inventions cannot be patented.

"The case comes on top of two other challenges in which the justices are
expected to clarify the circumstances under which the losing party in a patent
infringement case must pay the attorney’s fees and other costs incurred by the
winning party. Under current law, such 'fee shifting' is permissible under
certain circumstances, but the justices are being asked to expand those
circumstances to ensure that parties who file frivolous lawsuits are more
regularly punished."